OFCCP: Ask the Experts

OFCCP Ask the Experts

Ask the Experts is an online forum where federal contractors and subcontractors are invited to submit questions to industry experts related to OFCCP compliance, affirmative action planning, and equal employment opportunity. Simply register your company on LocalJobNetwork.com to submit a question.

We always try to bring interns/co-ops back for multiple terms and often try to get their commitment before the leave to go back to school well in advance. Given that, is there any requirement to post once they have joined us once for additional internships/co-ops?

We are currently updating our company's job application with a 'Statement of Accuracy' at the end, basically stating that all information is correct, this application doesn't guarantee employment, etc. etc. etc. We have the option to just select 'Yes' from a drop down when asked this question, OR select 'Yes' AND type their name. Does anyone happen to know if it is required to write your name, or if clicking 'Yes' would suffice? we just want to make sure that we are following correct protocol and staying in compliance.

I watched the documentation best practice webinar. I have a question about dispositions. Is it best practice to reject candidates based only on their resume? Or should we have application questions that clarify by self report if an applicant does or does not meet minimum qualifications?

Do you truly mean “MINIMUM qualifications” – as distinguished by law (OFCCP regulation 41 CFR 60 – 1.3, within the LONG definition of “Internet Applicant”) from “BASIC qualifications”? Since you made reference to the documentation webinar, I’m going to assume you mean BASIC qualifications. BIG difference! [A difference that really matters for purposes of certain record keeping obligations is the duty to solicit race, sex and ethnicity information, in general for government contractors, only from those who meet the definition of “Internet Applicant” – which may be a small percentage of the masses of people who need only “press a button” to apply for each job. This is also a difference that really matters with respect to the annual analysis of selection decisions that a contractor must prepare and must submit to the OFCCP in response to a notice that the establishment has been selected for a compliance review.]

“BASIC qualifications are those which the agency summarizes as “…noncomparative, objective and which are relevant to the particular position [filled]”; they must also be “advertised or established in advance [of making any selection decisions for the particular position”]. The agency also provides a number of helpful FAQs on its website. With specific reference to “Basic Qualifications” see https://www.dol.gov/ofccp/regs/compliance/faqs/iappfaqs.htm#Q1BQa. As distinguished from “BASIC qualifications”, a contractor’s “MINIMUM qualifications” might include, for example, a passing score on a pre-employment test whereas the definition of “BASIC” qualifications specifically EXCLUDES such tests (whether on line or administered on site) from that term. Basic qualifications also EXCLUDE those that are “comparative” (e.g. “must be one of the top five applicants”) and/or “subjective” (e.g. “must be ambitious”). And while these examples of “MINIMUM qualifications” also do not have to be ADVERTISED in advance they certainly can be. And, as a practical matter, basic qualifications must be ESTABLISHED in advance (and communicated to all the individuals who evaluate job seekers’ qualifications!!) or the employer is almost certainly going to treat job seekers differently as it goes thru the assessment process day after day, perhaps week after week.

There are other elements for which information will only be available to the contractor if it asks…it’s not going to be on a resume... that MATTER when it comes to triggering recordkeeping and analysis requirements. For example, “date available to start work”. If the contractor has a job it advertises in February and needs to fill quickly, it will not be able to do an early elimination from the screening process – regardless of qualifications –of the person who won’t be available until August UNLESS IT ASKS THE QUESTION up front and before making a substantive assessment. Similarly, unless it compels each job seeker to COMMIT to identifying a specific position (or positions) for which recruitment is underway the contractor has created for itself significant additional record keeping hurdles and analytical integrity issues: for which “particular” position was the job seeker’s “basic qualifications” assessed.

As to the specific “basic qualifications” – as well as other elements of a resume – the contractor is much more likely to learn what it wants to know versus what the job seeker wants to tell you if it asks specific and pointed questions: “how many years…”, “how many dollars in budget responsibility…”, “how many employees supervised”; “did your college course work include a study of fiber optics”, “Have you ever had final responsibility for preparing your department’s budget? When?”.

Furthermore, there are other elements of a definition of “applicant” – Internet or otherwise – that aren’t a part of the “qualifications for a particular job” assessment, including whether the job seeker's resume/application/on-line application is even legible. Sometimes it is not…an assessment can’t be made because the document or record simply isn’t legible/readable. (While infrequent, system failures can also "mangle" a record to illegibility) The contractor needs a disposition code to “dispose of” such a job seeker who might – as it turns out in court – have superior “basic qualifications – the employer simply couldn’t decipher what they were!

Or the job seeker is an employee who has not been in his or her current position long enough, or whose absenteeism is unacceptable, to be eligible for consideration. This isn't an assessment of the person's skills, knowledge or ability to do the job -- any more than "legal to hire" -- is such an assessment; it's simply the employer's rule -- or the law as the case may be. Use a discrete disposition code to make it easy to exclude such individuals from data which are captured for any discrimination analyses.

Asking questions about “availability” FOR THE PARTICULAR POSITION is the only way to find out if the person is truly seeking the job you are trying to fill! “Are you willing to work occasional overtime?”; “Are you available for frequent overtime?” “Are you willing to travel for periodic work at another company location?” “Do you have a preference for shift (Day, Afternoon or Night)?” Is there any shift you do not wish to work for whatever reason (Day, Afternoon or Night)?” Obviously, there is the potential for “disparate impact” as well as disparate treatment with respect to such terms and conditions of a job. But if treatment is consistent and the requirements of the job or the nature of the specific open requisition include shift work, travel, overtime then it is best to flush out early those persons who will be rejected or who will explicitly withdraw later.

Soliciting such information from job seekers in addition to the information they provide on resumes will save the employer wasting its time or the job seekers’ time processing resumes – or even conducting interviews – with job seekers with whom it does not have an authentic “meeting of the minds” about what job s/he really wants. This is but one example of what I call a “realistic job preview” which also includes telling people up front what the lifting requirements of the job are (the ACTUAL PHYSICAL ones, of course) or the exposure to dust or cold/hot temperatures. I’ve known recruiters for whom it was anathema to tell job seekers the “dirty details” up front…somehow they believed they could always talk someone into taking a job that was at odds with people's very real preferences or needs. Based on my experience, I don’t agree at all – and I’m certain that such persons, if they come to work at all, are not long retained -- and we start the process all over.

To sum up, it is ALWAYS a “best practice” to use a disposition code that is as accurate as possible in describing “what happened”. Consequently, MORE are definitely BETTER.

It is also always a “best practice” to pare down the number of “applicants” who must be included in any discrimination analysis BECAUSE THEY WERE “CONSIDERED” (that is, an assessment was made of BASIC QUALIFICATIONS) for selection into a particular position. The larger the number of persons in a discrimination analysis the more likely it is that differences in selection rates will be statistically significant for one or more races/ethnicities and/or for gender. The more people NOT selected, the more potential victims in an alleged “class” and, ultimately, the greater the financial risks.

Managing numbers – while still ensuring there are enough qualified persons in any applicant pool to make a good selection decision – is an important compliance strategy. And being able to COUNT THE RIGHT NUMBERS based on accurate disposition coding is critical.

For more info and recommendations on the use of disposition codes you might want to read my articles in the May and June 2018 issues of The OFCCP Digest on this website.

AAP Advice

Asked by Anonymous - Nov 29, 2018

We are a non-profit servicing elders and disabled that recently aquired another non-profit agency in the same sector. This new acquisition received notice of an OFCCP audit. The last AAP plan in place is dated 2016. They have no ATS in place and no applicant data at all aside from 3 boxes worth of hardcopy applications. How do I go about creating an AAP with no applicant information or virtually no information aside from current employee data? The plan would essentially be incomplete. Do you suggest we take the time to input all of those paper applications? How do you suggest I tackle this and what should my first steps be?

In an audit, it is imperative that the Affirmative Action Plan and support data be as complete as possible. According to the rules and regulations enforced by the OFCCP, a lack of data can be a real problem for any company. I suggest you take a look at availability data as well to identify problem areas - this is what the agency typically looks at in an absence of data. You may want to seek assistance from a professional that has tackled this type of issue before. Remember that any conversations with a compliance officer may bind your company to statements. Good luck in your audit.

Self-identification and Employee Self Service

Asked by Anonymous - Nov 16, 2018

We are looking at turning on our employee self-service which would allow employees access to their personal data and potentially to update their personal information (address, SS#, DOB, etc.). One of the screens includes fields for veteran, race, gender and disability status. I know that the OFFCP has set explicit requirements around using the OMB established form or adhering to the font, size and text specifications, but didn't know how this impacts HRIS systems. Are we required to offer that form electronically or hard copy anytime an employee wishes to self-identify? If that is the case, I would imagine these fields would need to be hidden from view. We have a hard time getting employees to self-identify. It would be nice to offer them the option to go in and update their information without having to go through HR.

It would be a nice option, but OFCCP requires that its OMB approved form be used for any self-identification regarding disabilities. As you noted in your question, any electronic copy of the form must:

Display the OMB number and expiration date;Contain the text of the form without alteration;Use a sans–serif font, such as Calibri or Arial; andUse at least 11–pitch for font size (with the exception of the footnote and burden statement, which must be at least 10–pitch in size).

Collecting Transcripts

Asked by Anonymous - Nov 14, 2018

I work for a DOD contractor in which we primarily hire software engineers. Every summer, we hire a new cohort of new graduates to join our company. Before we make individual offers to these recent graduates, we collect their academic transcripts for review. Currently, only HR (and occasionally the hiring manager) have access to the transcripts. We are generally looking for GPA's above 3.0 and that the students did well in their engineering classes. However, our interviewers are requesting to see the transcripts in advance of the interview, and in addition to the resume. In other words, when sending our interviewers a calendar item for the interview, the interviewers would receive the candidate's resume and transcript. For candidate privacy, do you see any issue with the interviewers (a broader scope than HR) having access to the transcripts? My concern is that information on the transcript will create a bias in the interviews. I am also concerned that if a candidate is not able to send his/her transcript, we are not conducting all interviews equally. If it is permissible to allow interviewers to access the transcripts, should HR inform the candidate that their transcripts may be sent to the interview team? Thank you.

Since this is a question about privacy versus OFCCP compliance, it is a bit out of my area of expertise, but I want to give you some information at least, from a compliance perspective.

Any time a company is reviewing job qualifications, it is important to understand why the criteria are what they are. In other words, why is a 3.1 acceptable for a new hire, but not a 2.9? What is the definition of "did well" in engineering classes? Seeing the transcripts could create a bias, but that doesn't mean that hiring managers cannot access them. You would definitely want to keep an eye out for trends that may be of concern, such as favoring one institution over another and that has adverse impact against a particular group. If transcripts are not required for each applicant to continue in the hiring process, why are they necessary for any one candidate?

In short, I would recommend you review your hiring process and make sure that each step is required and useful in finding qualified applicants. You may also want to talk with your hiring mangers and ask them to articulate why they are requesting transcripts. If there is a genuine need, then it is probably a good idea to let the candidate know the transcripts may be used by the interview team. Hope this helps.

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